Cara Ferguson v The Dunn Group

[2020] FWC 6020

[2020] FWC 6020

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Cara Ferguson
v
The Dunn Group
(U2020/13996)

COMMISSIONER BISSETT MELBOURNE, 11 NOVEMBER 2020

Application for an unfair dismissal remedy.

[1] On 22 October 2020, Miss Cara Ferguson made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] The application was incomplete in that Miss Ferguson did not pay the required fee or file a completed waiver form and question 1.1 of the Form F2 ‘What date did you begin working for your employer?’ was not answered.

[3] On 23 October 2020, the Commission attempted to contact Miss Ferguson on her nominated telephone number to discuss what date she began employment with her employer and to notify her that the fee waiver form submitted was incomplete however, Miss Ferguson did not answer the call. A voicemail message was left requesting for her to return the Commissions call.

[4] Later that day, the Commission emailed correspondence to Miss Ferguson’s nominated email address advising that question 1.1 of the Form F2 needed to be completed if she wished to proceed with the application. That correspondence also warned that if payment is not made or a completed waiver form not received within 14 days, the application may be dismissed. An SMS notification was also sent to Miss Ferguson’s nominated telephone number, advising that there was a problem with their application and requesting them to contact the Commission.

[5] A final attempt to contact Miss Ferguson was made by the Commission on 6 November 2020 to obtain payment or a completed waiver form. The call was not answered and a detailed voicemail message was left advising Miss Ferguson that the unfair dismissal application was incomplete in relation to question 1.1 of the Form F2 ‘What date did you begin working for your employer?’ and that the fee waiver submitted was incomplete. The Commission informed Miss Ferguson that this is a matter of urgency and to provide these responses as soon as possible.

[6] To date there has been no response from Miss Ferguson, the required fee has not been paid and a completed waiver form has not been received.

[7] Section 395 of the FW Act, which deals with application fees, provides as follows:

395 Application fees

(1) An application to the FWC under this Division must be accompanied by any fee prescribed by the regulations.

(2) The regulations may prescribe:

(a) a fee for making an application to the FWC under this Division; and

(b) a method for indexing the fee; and

(c) the circumstances in which all or part of the fee may be waived or refunded.

[8] Section 587(1) of the FW Act provides:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

[9] Having regard to the circumstances of this matter, I am satisfied that as the application was not accompanied by the fee prescribed by the FW Act, the application was not made in accordance with the FW Act. As such, the application is dismissed pursuant to s.587(1)(a) of the FW Act. An Order 1 to this effect will be issued shortly.

COMMISSIONER

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